Alexander v Minister for Home Affairs: Existential Citizenship and Metaphorical Allegiance
Helen Irving
15.07.2022
Alexander v Minister for Home Affairs [2022] HCA 19 (Alexander), handed down by the High Court on 8 June this year, involved a challenge to section 36B of the Australian Citizenship Act 2007 (as amended in 2020) (the Citizenship Act), which purported to empower the Minister to strip citizenship from an Australian dual national who, ‘by their conduct, demonstrates that the person has repudiated their allegiance to Australia’ and if the Minister is satisfied that ‘it would be contrary to the public interest for the person to remain an Australian citizen.’ The revocation of citizenship, the Court concluded, was punitive. Punishment for unlawful conduct, as it held in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992], is a judicial function, made exclusive to the federal courts under Chapter III of the Constitution. Citizenship revocation, imposed by the executive, therefore breaches the constitutional separation of powers. Section 36B was accordingly invalid, and Mr Alexander, an Australian-Turkish dual national whose citizenship had been revoked after he travelled to Syria (and following an adverse ASIO report), remained an Australian citizen.
The conclusion in Alexander proved to be narrow and essentially formal, and citizenship revocation following a conviction for comparable conduct continues to be available through s 36D of the Citizenship Act. But the significance of the case goes well beyond its conclusion about the s 36B breach of Chapter III. From the complex, sometimes convoluted reasoning of the majority judgments, a powerful proposition emerges. Revocation of citizenship – whether it is called ‘cessation’ (as in the Citizenship Act) or ‘deprivation’ (as in the comparable UK legislation, a term tellingly preferred by the joint judgment of Kiefel CJ, Keane and Gleeson JJ to the ‘emollient’ language of ‘cessation’: [79]) – is an extreme and drastic measure. It strips an individual not merely of the rights associated with citizenship, but also ‘of the right to be at liberty in Australia’ and the right ‘to return to [Australia] as a safe haven in need’ (Kiefel CJ, Keane and Edelman JJ at [74] and [95]). Even further, citizenship deprivation, as Gordon J and Edelman J confirmed in separate concurring judgments (quoting from the United States Supreme Court in Trop v Dulles 356 U.S. 86 (1958)), is a dreadful form of punishment ‘“more primitive than torture”’ (at [172], [325]) involving ‘“the total destruction of the individual’s status in organized society”’ (at [248]).
Many questions arise from such characterisation. In this post, I deal with two. First, if ‘cessation’ or ‘deprivation’ of citizenship is the consequence of conduct that indicates ‘repudiation of allegiance’, what is meant by allegiance? Secondly, if the US Supreme Court’s perspective on the effect on the person is compelling, why did the High Court dismiss the plaintiff’s argument that Australian citizenship, once acquired, could not be lost other than through a deliberate and voluntary act on the person’s part – the conclusion of the US Supreme Court in 1967, and one it has held ever since?
What is ‘allegiance’?
As s 36B of the Citizenship Act refers to ‘repudiation’ of allegiance and sets out multiple grounds for a finding of repudiation, the Court in Alexander necessarily spent significant time reflecting on the nature of the relevant conduct. Exemplified in the Act by terrorism and terrorist related acts, in addition to the traditional or ‘paradigm’ ground (Gordon J at [154]) of ‘serving in the armed forces of a country at war with Australia’, the conduct is objective, concrete and essentially belligerent. But the Court went beyond these terms, seeking to capture the quality of ‘repudiation’ or (to use an alternative term) ‘disallegiance’. The instances in s 36B, Edelman J explained, provide ‘a baseline for the extreme nature of the conduct required to establish a repudiation of allegiance’ (at [234]).
Numerous abstract examples are given in the judgments: ‘act[ing] so inimically to Australia’s interests as to repudiate the obligations of citizenship on which membership of the people of the Commonwealth depends’ (at [46]); conduct ‘so incompatible with the values of the Australian people as to be seen to be incompatible with continued membership of the Australian body politic’ (at [62]); ‘conduct that is conceived of as being so reprehensible that it is radically incompatible with the values of the community’ (at [82]); actions that ‘seek to destroy or gravely harm the fundamental and basal features of the nation guarded by its Constitution, such as representative democracy and the rule of law, and actions directed at overthrowing state institutions’ (at [233], [290]). ‘Wrongdoing’, observed Edelman J – even extreme wrongdoing – may be committed without loss of membership of the political community, but ‘there will come a point at which the person’s wrongdoing is so extreme that it can be judged to be inconsistent with continuing membership of the political community’ (at [233]). But these forceful characterisations merely repeat that the relevant conduct is extremely serious, and tell us little about allegiance, other than perhaps by implication that ‘allegiant’ citizens do not engage in such conduct.
We might then be drawn to conclude that ‘allegiance’ is simply the antonym of ‘disallegiance’, but this is too simple. Certainly, as the Court recognised, there is a long history of associating allegiance and citizenship, going back at least as far as Sir Edward Coke’s seminal 1608 declaration of the tie between ‘ligeance’ and nationality (or subject status). But this gives us little guidance as to the nature of allegiance in the twenty-first century. ‘Whatever might have been its previous force as a concept of law’, Edelman J observes in Alexander, ‘allegiance remains in use here as a metaphor to describe the association or belonging that a person has as a member of a community which brings additional civic rights and duties’ (at [232]). Just a ‘metaphor’?
Certainly, for a time (around the early post-war years), as Edelman J and the joint judgment note, leading legal scholars (such as Clive Parry, quoted by Edelman J (at [231]) found the concept of allegiance to be no longer relevant in nationality law. Indeed, we may add, some considered it to be inapt and ‘archaic’. But, in the twenty-first century, allegiance has made a ‘comeback’, both in legislation and in political and legal discourse. Yet it remains under-theorised and jurisprudentially enigmatic. Revealingly, even before the passage of the Citizenship Act’s ‘allegiance to Australia’ amendment, its puzzling character was evoked in the High Court. In Singh v Commonwealth [2004] (Singh), concerning a challenge to the 1986 repeal of jus soli in Australia, Gummow, Hayne and Heydon JJ reflected on the inutility of pointing to the root of allegiance in ‘the feudal idea of a personal duty or fealty to a lord from whom land is held’, and asked what else it might mean. ‘Plainly it is a term which connotes duty or obligation, but what exactly are the duties or obligations embraced by the word? … Sometimes they are spoken of as being duties or obligations of “fidelity” or “loyalty” but again those words reveal little about the content of the duties or obligations’ (Singh at [165]). Alexander has done little to lift the veil on the concept.
Why might we need to do this? An understanding of the concept demarcates the limits to legal retribution (such as citizenship deprivation) that might be attached to supposedly disallegiant conduct. It gives us a sense of what is at stake. If, as is said in the Citizenship Act (and repeated in the judgment), a ‘repudiation of allegiance’ entails a departure from Australian values, what are these? Democracy and the rule of law, for a start, but doesn’t democracy allow for dissent? A law that made membership of the Communist Party a ground for loss of citizenship (on the footing that communism promoted a scheme for destroying representative democracy) would not be unconstitutional according to the reasoning in Alexander. If so, the content of ‘allegiance’ would extend to non-membership of such political organisations, a radical idea but not ultra vires. How far might this go? Would we support the reintroduction of citizenship revocation for foreign naturalisation, on the ground that it meant a transfer of allegiance, attached to the conviction that dual citizenship was intolerable? Or reintroducing the virtually-universal law adopted in 1870 in UK legislation and followed by Australia until 1948, under which a woman who married a foreign man automatically forfeited her pre-marital nationality, whether she chose to or not, on the ground that allegiance meant that Australians must unite exclusively with fellow citizens? Such thinking is not hypothetical. It nourished these laws for decades.
The search for a stable concept of allegiance, indeed, reveals its inappropriate character and its lack of fit with the modern liberal democratic polity the law is intended to defend. If disallegiance is so weighty, so shocking, so extreme, its antonym must be more than metaphorical or neutral. Allegiance, as legal scholars and jurists (including on the High Court) have long recognised, means a duty of obedience (on the part of a subject to the sovereign or state). It is hierarchical, inegalitarian, and rigid. In contrast, liberal democracy denotes political equality, freedom of conscience, self-government: a community of citizens, not subjects. This understanding of allegiance does not mean that terrorists should go unpunished; rather, it means that our response to their acts should not rest upon a view of the citizen-state relationship that is antithetical to our democratic practices.
United States ‘expatriation’ jurisprudence
The Court in Alexander drew powerfully on United States jurisprudence in painting a picture of the ‘dire’ consequences of citizenship deprivation. After decades of upholding increasingly severe ‘expatriation’ laws, followed by a gradual confinement in what it recognised as valid grounds for expatriation and the conclusion that expatriation cannot be imposed without ‘due process’, the US Supreme Court in 1967 in Afroyim v Rusk 387 U.S. 253 (Afroyim) dramatically overruled an earlier judgment that had upheld expatriation (for nothing more extreme than voting in a foreign election). In Afroyim, the Supreme Court considered the limits of congressional power and the character and impact of expatriation more broadly. Its conclusion was that American citizenship, once acquired, cannot be lost other than by a person’s deliberate and voluntary act. As noted, this conclusion (with some small adjustments, not corrosive of the original ruling or relevant to Alexander) has been maintained throughout subsequent US case law.
Multiple references to these cases appear in Alexander. Why, if the High Court accepted the modern US characterisation of citizenship deprivation, with its emphasis on the devastating impact upon the person, did its reasoning not lead it to a similar conclusion? The Court’s suggestion appears to be that, once the principle of ‘perpetual allegiance’ had been abandoned in UK law in the mid-nineteenth century, British and, subsequently, Australian laws did not rule out revocation, and that the history of revocation laws serves as a rebuttal. But the same held for the United States, where inalienable allegiance was abandoned at almost exactly the same time. In distinguishing Australia from the US, Kiefel CJ, Keane and Gleeson JJ noted (at [32]) that the US Constitution includes the Fourteenth Amendment, which ‘contemplate[s]’ that individuals born in the US are American citizens. But the Fourteenth Amendment did not historically serve as a safeguard against ‘expatriation’. Further, Trop v Dulles, so powerfully referenced in Alexander, concerned the impact of expatriation leading to statelessness, a matter not specifically addressed by the Court. The United States Supreme Court also concluded that, given the extreme effect, expatriation amounted to ‘cruel and unusual’ punishment and breached the Eighth Amendment, a point considered only in the dissenting judgment of Steward J in Alexander. The High Court’s references to US jurisprudence sit strangely unanchored, directionless, and unresolved.
Conclusion
Despite affirming that ‘the Constitution leaves it to Parliament to decide who shall be granted the status of citizenship and what that status may mean’ (Kiefel CJ, Keane and Gleeson JJ at [33]) – effectively, an unfettered power over statutory definitions of citizenship – Alexander paradoxically offers a major departure from a view of citizenship as principally formal and statutory. As it has repeatedly done in modern citizenship cases, the Court raised the Pochi challenge, asking what the limits are to Parliament’s power to define persons as aliens ‘who could not possibly answer the description of “aliens” in the ordinary understanding of the word’ (Pochi v Macphee [1982] at [9]) But, as in the past, it provided no answer.
A definitive answer might be something of a thunderbolt. Even more striking would be a conclusion that Australian citizenship, once acquired, could not be lost involuntarily, but not much more so than the decision in Love v Commonwealth [2020] in which the Court held that non-citizen First Nations peoples could not be classified as aliens. The recourse in Alexander to US jurisprudence, and the Court’s recognition of the profoundly existential nature of citizenship – in a blunt rejection of the Commonwealth’s alternative contention comparing the loss of citizenship to the temporary loss of a licence to manage a corporation – may neither promise nor threaten a reversal of the kind that occurred in the US. But it invites a seriously new direction in thinking about the nature of citizenship. That, whether intended or not, must be welcome.
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Helen Irving is a Professor Emerita at Sydney Law School. Her most recent publication is Allegiance, Citizenship and the Law: The Enigma of Belonging (Edward Elgar Publishing 2022).
Suggested citation: Helen Irving, ‘Alexander v Minister for Home Affairs: Existential Citizenship and Metaphorical Allegiance’ on AUSPUBLAW (15 July 2022) <https://www.auspublaw.org/blog/2022/07/alexander-v-minister-for-home-affairs-existential-citizenship-and-metaphorical-allegiance>